Speech, Civility and the Salaita Case

by Gerald Dworkin

In a talk given some years ago at the University of Illinois Urbana (UIUC), which is the object of a boycott protesting the Salaita decision, I described myself as a “first amendment fanatic.” Having grown up in the era of McCarthyism as the child of a member of the Communist Party, having endured a mild amount of FBI scrutiny of my travel and organizational affiliations, surely contributed to this bias in favor of freedom of speech. The text I most enjoyed teaching by the philosopher I admire most, John Stuart Mill, is his defense of freedom of speech in On Liberty.

I have always been suspicious of bans on “hate speech” and thought a bit about how it might or might not differ from crimes which created additional punishments for particular victims of assaults. I was inclined to favor such additional sanctions for, say, the elderly who were more likely to be seriously injured by such assaults, and to be more fearful of using the streets. But I was inclined to oppose such increases for those attacked because of their race or sexual orientation. It smacked too much of punishing not just the acts but hateful thoughts as well.

This is where I stood when considering the question of whether to sign on to a petition to the Chancellor of the University UIUC condemning her action of de-hiring, or not appointing, or firing –depending on arcane views about the nature of contract law — Steven Salaita. I assume that many of the readers of this blog are aware of the wide-spread controversy, and proposed boycott–refusing to speak at the campus– of UIUC, by the academic community. Philosophers have been particularly prominent in this effort. For those who are new to this issue, here is some basic information, a critique of the decision, and a defense of it:

The issue is, as a matter of law, very complicated. Experts in contract law–does he have a valid contract before the Board of Trustees approves the appointment?– are divided on the matter. The constitutional issue seems clearer. The First Amendment has been long interpreted as forbidding state agencies–including public universities– from punishing employees for the expression of political viewpoints. But this is consistent with such agencies being able to ensure they can discharge their legitimate functions. So there is room–given various empirical assumptions–for the decision being upheld. But, absent any evidence that Salaita has made his classroom a hostile one by his tweets, it is likely that he is protected by the First Amendment.

However, I think that there are moral, political and institutional issues that arise in this case , and which are invoked by the protesters and the defenders, that need to be discussed in isolation from the purely legal issues. These are my focus in this blog post.

The first, and best, argument against the decision is procedural. The Chancellor's decision was made long after all the normal procedures for appointment had been followed. At all levels–departmental, college, provost–the decision to offer a tenured appointment had been made. Only the approval of the Board of Trustees was required and this has always been regarded as a pro forma requirement. Salaita had resigned a tenured position and made arrangements for moving with his family.

In addition, it was inappropriate for the Chancellor to make this unprecedented revocation of an appointment without consulting the other academic actors such as the Chair of the Department, the Dean of the College, The Provost for Academic Affairs. This was particularly important since the nature of the tweets in question is so tied up with the ideological views of the candidate that intensive scrutiny of whether he was being punished for his views was warranted. We now know, because of freedom of information requests, that Chancellor Wise was aware of many important donors requesting the appointment be cancelled, and actually meeting with at least one such donor to discuss the issue. She also seems to be distancing herself from her own decision by claiming she was just passing on the view of the Board of Trustees and thought the humane thing to do was let Salaita know sooner rather than later! With a name like Wise you would think she could do better.

These considerations seemed to me sufficiently weighty to justify strong protests including an academic boycott of the campus. The latter raises issues of its own– are we punishing the students and faculty who are not at fault?–which I will not discuss.

It is important, however, to recognize that these procedural considerations only show that in this particular case, for these institutional reasons, the decision was illegitimate. I want to focus on is whether a similar decision, made with scrupulous attention to academic protocol, and fairness to the candidate, could be warranted.

But what is a similar case? What kinds of speech, in what fora, at what level of appointment, might be legitimate grounds, for what kinds of sanctions?

The speech in question in the Salaita case consisted of tweets. They were not comments made in the classroom nor in academic work. To focus the discussion I shall concentrate on the following tweets:

“You may be too refined to say it, but I'm not: I wish all the fucking West Bank settlers would go missing.”

“[Jeffrey Goldberg's] story should have ended at the pointy end of a shiv.”

“If you're defending Israel right now, you are an awful human being.”

For completeness I add the following since it has appeared in many comments on the case. I do not rely on it for reasons that will appear.

“Zionists: transforming 'antisemitism' from something horrible into something honorable since 1948.”

These tweets express certain attitudes and have a specific content. They represent strong disapproval of the actions of the Israeli government in Gaza, and a general hostility towards Zionism. I think it impermissible for a university to use the ideological character of such views as grounds for revoking an appointment that has met all the normal requirements for such an appointment. The University maintains it did not, and for the sake of argument, I want to assume it did not. If this is too counter-factual for you to accept, consider a hypothetical university which would have acted in exactly the same way had the tweets in question been phrased in ways which favored Israel and attacked the Palestinian position.

The three tweets are expressed in a way that I find disgusting, vicious, and disrespectful. In addition, the first two express approval of immoral and violent acts. There can be disagreement about this. I find that the arguments given by some Salaita supporters to interpret them differently are casuistic to say the least. E.g. claiming that “go missing” does not mean “kidnapping” or “murder” on the grounds that if Salaita meant those terms he would have said so! But this tweet occurred in the context of the kidnapping of three Jewish children and the term being used in all the stories was that the children were “missing.” Another commentator says about the second tweet that it meant the “story” should have ended at the point of a shiv, not Goldberg. As if it made sense for a story to end at the point of a knife.

I do not include the tweet about anti-semitism as I believe a careful reading of the quotation, in the context of other relevant tweets, indicates that the remark is not anti-semitic. It is only on a certain interpretation of “anti-semitism” that it is honorable, i.e. being opposed to certain specific evils, such as colonization and land theft, the treatment of Gaza and the West Bank.

The first point to make is that were these tweets uttered in the classroom they can be prima-facie grounds for firing a teacher, or, if she has tenure, revoking it. No student who disagrees with the teacher should be labeled a horrible person. Note: There is no evidence that in his previous academic appointment Salaita said similar things in the classroom.

If you are doubtful about the classroom claim I invite you to think about your reaction if the statements uttered in class were the following.

“You may be too refined to say it, but I am not: I wish every fucking black in Ferguson would wind up like Michael Brown.”

“Obama's statement on Michael Brown should have ended at the point of a shiv.”

“If you're defending Michael Brown right now, you are an awful human being.”

These statements are a possible ground for termination not because they are expressions of a certain view-point. One is free in the classroom to defend the actions of the Ferguson police as legitimate, and to argue that Brown was a criminal who deserved what he got. But one is not free in the classroom to to urge the murder of people who disagree with you, or to categorize those who disagree as awful human beings.

Once we leave the classroom–some of us academics never have!–matters become more complicated. But I also think it true that in considering a proposed academic appointment these tweets are relevant. This is not just an issue of “collegiality”. We are not talking here about whether a potential colleague is witty or dull, tactful or abrasive, listens to other people or not. This is a question of having to interact on a daily basis with a person with such views, and a character which allows him to express such views, in such language, for public consumption.

Some defenders of Salaita argue that what goes on in social media is irrelevant to academic decisions. Consider a very recent instance of comments reported by the eminent classicist Mary Beard on her blog. If someone you were considering hiring made the comments below would you consider that fact relevant to the hiring of a new faculty member?

Beard remarks that “'Shut up you bitch'” is a fairly common refrain on her blog and these often come with threats, what she refers to as a “predictable menu of rape, bombing, murder, and so forth.” She reports one tweet that had been directed at her: “I'm going to cut off your head and rape it.”

Even if you distinguish the tweet from Salaita's because the statement is directed at a specific individual and is, very likely, criminal, the first comment is sufficient to raise grave questions in my mind about the hiring of such a person.

What about the relevance of such statements, made outside of the academic environment, to the firing of an employee–tenured or un-tenured? Here matters become more complicated. One would want to bend over backwards to make sure that nobody is sanctioned for their viewpoints–no matter how crazy, unpleasant, or shocking they might be.

Some Salaita defenders seem to think that it is impossible to distinguish between sanctions based on viewpoints expressed passionately, and the character of the Salaita tweets.

In a letter to the Chancellor protesting the decision, Professor Kathryn Franke dismisses the idea that Salaita is being fired because –in the Chancellor's words –UIUC “will not tolerate…personal or disrespectful words or actions that demean or abuse other viewpoints themselves or those who express them”. Franke says that she would be disqualified under that standard since her recent article…”includes a sustained critique of the state of Israel's effort to rebrand itself as a gay haven in order to distract from its abuse of the human-rights of Palestinians.” I have not looked at her article but I am willing to wager that no language equivalent in character to the tweets appears. Sustained critique does not equate to demeaning views or abusing ideological opponents.

The best arguments against taking such material into account outside of the classroom context are those of the American Historical Association in a letter to Chancellor Wise. Here are some excerpts.

“The First Amendment protects speech, both civil and uncivil. It does so for good reason….a democracy can flourish only with a robustly open public sphere where conflicting opinions can vigorously engage one another. Such a public sphere rests on the recognition that speech on matters of public concern is often emotional and that it employs a variety of idioms and styles. Hence American law protects not only polite discourse but also vulgarity not only sweet rationality but also impassioned denunciation. Civility is a laudable ideal, and many of us with that American public life had more of it today….But the requirement of “civility” on speech in the university community or in any other sector of our public sphere –and punishing infractions -can only backfire. Such a policy produces a chilling effect , inhibiting the full expression of ideas that both scholarly investigation and democratic institutions need.”

As a defense of the First Amendment guarantee of freedom of speech I find this entirely cogent. It essentially says that the government–and the First Amendment only applies to governmental organizations– cannot be trusted to distinguish sanctions based on content of viewpoints from the way they are expressed, or the strength of convictions from their insulting and demeaning character. And because of that individuals may be discouraged from expressing their strongly held convictions.

But as an ideal, or even a set of constraints on institutional behavior –in particular the academic community–I find it much less plausible. The AHA seeks to extend the argument to the university community.

“If allowed to stand, your administration's punitive treatment of Steven Salaita will chill the intellectual atmosphere at the University of Illinois. Even tenured professors will fear for their job security…The unhappy consequences for the untenured will be even more pronounced. A regimen of defensive self-censorship will settle like a cloud over faculty lectures and classroom discussions.”

Really? The decision in a particular case to cancel an appointment because of these particular tweets will start tenured professors shaking in their boots? In my twenty-some years of teaching at the University of Illinois at Chicago–the urban sister of UIUC- the faculty struck me as made of more hardy material. Scholars whose occupation involves making the finest distinctions between angels on the head of a pin cannot distinguish between a policy which focuses on the viewpoints of scholars and one which focuses on slurs, obscenities, and threats?

My worry is that arguments from this particular case are being generalized to rule out, in principle, considerations which seem to be clearly reasonable at the original Departmental decision. And, if sparingly and hesitantly used, at higher levels of academic review, to raise questions about an appointment.

In typical philosophical fashion, I close with some rhetorical worries about my own worries. These were stimulated by two other blog authors–Brian Leiter and Samir Chopra. Leiter asks: Is “Jeffrey Goldberg should end up on the end of a shiv” worse than Heine's, “One must of course forgive one's enemies, but not before they have been hanged?”

Chopra gives the example of a hypothetical feminist, and rather angry, philosopher who after some particularly egregious male behavior, tweets as follows:

Days like this, I feel like re-installing Valerie Solanas as my hero. She would have known what to do. The time for just polemics is over.

I mean, who wouldn't want to re-read the S.C.U.M manifesto all over again and take it way more seriously this time. She might have been right all along.

In case you are wondering: S.C.U.M = Society for Cutting Up Men. And geez, I could send in the subscription fees for that right about now.

These examples give me pause. I am strongly inclined to not allow them in as prima facie grounds for disciplinary action. But it is not clear to me how to distinguish these expressions from the ones–such as the Salaita tweets and Beard commentators–I am inclined to allow. It has something to do with the fact that Heine's is witty rather than vicious. And that the Solanas tweets do not seem an incitement to violence in the same way that the West Bank settlers tweet is. Maybe because it selects the entire class of men for being cut up–a proposal that is completely unrealistic, and hence, probably not meant literally.

Bottom line. I believe that Salaita should be allowed to assume his position at UIUC because of the procedural irregularities involved in revoking his appointment, and the resulting unfairness to the candidate. But I believe the considerations that have been raised about his tweets, had they been known at the time of his appointment, would have been legitimate considerations to consider by the hiring Department. And I also believe that we need more thought to determine whether they would be legitimate grounds for removing a faculty member, whether untenured or tenured, even if they do not create a hostile learning environment for students.